DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 12 and 19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 12 recites the limitation "the Flash DSC Method" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim 19 recites the limitation "the Crystallinity Test" in line 5. There is insufficient antecedent basis for this limitations in the claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claims 1-10 are rejected under 35 U.S.C. 103 as being unpatentable over Erdem et al. US Patent Application Publication 2019/0105209 in view of Chester et al. US Patent Application Publication 2015/0322605 and further in view of Ashraf et al. US Patent Application Publication 2018/0214321 (Erdem and Chester are cited in IDS filed 11/14/2025).
As to claims 1 and 6, Erdem teaches an absorbent article 10 comprising:
a nonwoven topsheet 26/200 (paragraphs 0056, 0073) comprising:
a first nonwoven web comprising:
multi-component fibers comprising polypropylene (paragraphs 0056, 0073).
Erdem does not specifically teach the multi-component fibers are continuous. Chester teaches a spunbond nonwoven web comprising continuous fibers for the benefit of providing a web with high extensibility and abrasion resistance (Chester paragraphs 0009-0010, 0030, 0058-0059, 0068). It would have been obvious to one having ordinary skill in the art before the invention was originally filed to use continuous filaments for the nonwoven web for the benefit taught in Chester.
Erdem/Chester does not teach the polypropylene has a crystallinity of between about 20% and about 41%, according to a Crystallinity Test, and wherein the polypropylene has a melting temperature of between about 130°C and about 161°C (Chester paragraph 0047). Erdem incorporates by reference (Erdem paragraph 0056) Arora et al. US Patent Application Publication 2016/0136014 who teaches thermoplastic fibers that melt and then crystallize upon cooling for use in the topsheet (Arora paragraph 0135). Specifically, Erdem/Chester teaches polypropylene is used as a core component of a bicomponent fiber in a topsheet (Erdem paragraphs 0056, 0073) the same as the present invention. It would have been obvious to one of ordinary skill in the art before the invention was originally filed to provide the topsheet with polypropylene fibers having the claimed melt temperatures and crystallinity to ensure the integrity of the fibers in the bonding and aperturing processes.
Erdem/Chester teaches the nonwoven topsheet defines a plurality of apertures (Erdem paragraph 0076).
Erdem/Chester does not teach the nonwoven topsheet comprises one or more melt lips at least partially surrounding one or more of the plurality of apertures. Ashraf teaches nonwoven fabrics having three-dimensional surface features and aperture patterns that can allow for fluid penetration (Ashraf paras. 0005-0006). Ashraf teaches the nonwoven substrate is used as a topsheet in an absorbent article (Ashraf para. 0096). Ashraf further teaches at least some of the apertures can comprise one or more melt lips 15 or fused portions that may at least partially or fully surround the apertures 13. Ashraf teaches the one or more melt lips 15 may be formed during the overbonding step and may add strength to a substrate (Ashraf Fig. 3; para. 0102). It would have been obvious to one having ordinary skill in the art before the invention was originally filed to modify the apertures in the nonwoven topsheet of Erdem/Chester with melt lips for the benefit of adding strength to the nonwoven as taught in Ashraf.
Erdem/Chester/Ashraf further teaches a major central axis dimension of the apertures is 1.5 to about 3.5 mm (Erdem paragraph 0080; Figure 16A). Erdem/Chester/Ashraf does not teach the apertures are measured according to an Aperture Area Equivalent Diameter Test. However Erdem teaches a test for determining the same parameter, aperture diameter (Erdem paragraphs 0080, 0111) which falls within the claimed range of aperture diameters of the present invention. One of ordinary skill in the art would expect the test methods to produce identical results, or results having statistically insignificant differences.
Erdem/Chester/Ashraf further teaches a liquid impermeable backsheet 28; and an absorbent core 30 positioned at least partially intermediate the topsheet 26 and the backsheet 28 (Erdem paragraph 0046).
As to claim 2, Erdem/Chester/Ashraf teaches the continuous multi-component fibers comprise polyethylene (Erdem paragraph 0073; Chester paragraphs 0040,0041,0050). Erdem/Chester/Ashraf do not teach the polyethylene reaches a crystallization peak maximum in less than 1360ms, according to a Flash DSC Method. However, it is reasonable to expect the invention of Erdem/Chester/Ashraf to achieve these material properties if subjected to the same material testing parameters since the article of Erdem/Chester/Ashraf is comprised of the same materials and meets the construction limitations as the present invention. It would have been obvious to one having ordinary skill in the art at the time the invention was originally filed to have applied the same testing procedures with the expectation of the same results since the same materials are used in the invention of Erdem/Chester/Ashraf.
As to claim 3, the continuous multi-component fibers comprise bi-component spunbond fibers (Erdem paragraphs 0056, 0073).
As to claim 4, the bi-component spunbond fibers have a sheath- core configuration comprising a sheath and a core, wherein the sheath comprises the polyethylene, and wherein the core comprises the polypropylene (Erdem paragraph 0073).
As to claim 5, Erdem/Chester/Ashraf does not specifically teach the first nonwoven web comprises a primary bond area of about 10% to about 35%, according to a Primary Bond Area Test. Erdem incorporates by reference (Erdem paragraph 0055) Datta et al. USPN 6840928 who teaches a nonwoven web for a topsheet having multi-component fibers where the web has a discrete bond pattern with a prescribed bond surface area. Datta teaches if the bond area is too high, the neckable material can break before it necks and if it is too low, the material can pull apart. Datta teaches the percent bonding area useful in this type of material ranges from around 5% to around 40% of the area of the material (Datta col. 16, lines 5-36), which has values in the claimed range of 10% to about 35%. Further Chester teaches a point area of approximately 12% (paragraph 0092), which falls in the range of about 10% to about 35%.
As to claim 7, the nonwoven topsheet has an Effective Open Area of between about 7% and about 30%, according to an Effective Open Area Test (Erdem paragraph 0081).
As to claim 8, Erdem/Chester/Ashraf teaches a multilayered topsheet (Erdem paragraph 0072) and in paragraph 0056, incorporates by reference Arora et al. US Patent Application Publication 2016/0136014 who teaches the nonwoven topsheet comprises a second nonwoven web, and wherein the first nonwoven web is hydrophobic (Arora paragraph 0122) and the second nonwoven web is hydrophilic (Arora paragraph 0122).
As to claim 9, the apertures are non-homogeneous – where Erdem teaches the apertures may be of one or more different sizes and/or shapes (Erdem paragraphs 0082).
As to claim 10, Erdem/Chester/Ashraf teaches the nonwoven web of claim 1 substantially as claimed. See the rejection of claim 1 supra. Erdem/Chester/Ashraf do not teach the nonwoven topsheet has a lint production of between about 3% and about 9%, according to a Tape Stripping Test. However, it is reasonable to expect the invention of Erdem/Chester/Ashraf to achieve these material properties if subjected to the same material testing parameters since the article of Erdem/Chester/Ashraf is comprised of the same materials and meets the construction limitations as the present invention. It would have been obvious to one having ordinary skill in the art before the invention was originally filed to have applied the same testing procedures with the expectation of the same results since the same materials are used in the invention of Erdem/Chester/Ashraf.
Claims 11-16 and 18-20 are rejected under 35 U.S.C. 103 as being unpatentable over Erdem et al. US Patent Application Publication 2019/0105209 in view of Chester et al. US Patent Application Publication 2015/0322605 (Erdem and Chester are cited in IDS filed 11/14/2025).
As to claim 11, Erdem teaches a nonwoven web for an absorbent article, the nonwoven web comprising: spunbond bi-component fibers comprising polypropylene (Erdem paragraphs 0056, 0073).
Erdem does not teach the polypropylene has a crystallinity of between about 20% and about 41%, according to the Crystallinity Test, and wherein the polypropylene has a melting temperature of between about 130°C and about 161°C (Chester paragraph 0047). Erdem incorporates by reference (Erdem paragraph 0056) Arora et al. US Patent Application Publication 2016/0136014 who teaches thermoplastic fibers that melt and then crystallize upon cooling for use in the topsheet (Arora paragraph 0135). Specifically, Erdem teaches polypropylene is used as a core component of a bicomponent fiber in a topsheet (paragraphs 0056, 0073) the same as the present invention. It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to provide the topsheet with polypropylene fibers having the claimed melt temperatures and crystallinity to ensure the integrity of the fibers in the bonding and aperturing processes.
Erdem/Chester teaches the spunbond bi-component fibers comprise polyethylene (Erdem paragraphs 0056, 0073; Chester paragraphs 0040,0041,0050). Erdem/Chester do not teach the polyethylene reaches a crystallization peak maximum in less than 1360ms, according to the Flash DSC Method. However, it is reasonable to expect the invention of Erdem/Chester to achieve these material properties if subjected to the same material testing parameters since the article of Erdem/Chester is comprised of the same materials and meets the construction limitations as the present invention. It would have been obvious to one having ordinary skill in the art at the time the invention was originally filed to have applied the same testing procedures with the expectation of the same results since the same materials are used in the invention of Erdem/Chester.
Erdem/Chester does not teach the nonwoven topsheet has an extensibility of between about 300% and about 450%, according to the High Speed Tensile Test. However, Chester teaches an elongation of about 400-600% according to a High Speed deformation test (Chester paragraphs 0042, 0082-0083 and Tables 15,17).
However Erdem/Chester teaches a tests for determining the same parameters as the present invention with values that fall within the claimed ranges of the present invention. One of ordinary skill in the art would expect the test methods to produce identical results, or results having statistically insignificant differences.
As to claim 12, Erdem/Chester teaches the spunbond bi-component fibers comprise polyethylene (Erdem paragraphs 0056, 0073; Chester paragraphs 0040,0041,0050). Erdem/Chester do not teach the polyethylene reaches a crystallization peak maximum in less than 1360ms, according to the Flash DSC Method. However, it is reasonable to expect the invention of Erdem/Chester to achieve these material properties if subjected to the same material testing parameters since the article of Erdem/Chester is comprised of the same materials and meets the construction limitations as the present invention. It would have been obvious to one having ordinary skill in the art at the time the invention was originally filed to have applied the same testing procedures with the expectation of the same results since the same materials are used in the invention of Erdem/Chester/Ashraf.
As to claim 13, the spunbond bi-component fibers have a sheath- core configuration comprising a sheath and a core, wherein the sheath comprises the polyethylene, and wherein the core comprises the polypropylene (Erdem paragraphs 0056, 0073).
As to claim 14, Erdem/Chester does not teach every gram per square meter of nonwoven web has a neckdown modulus of greater than 56 N/m, according to a Neckdown Modulus Test. However Erdem/Chester teaches a test for determining the same parameters as the present invention with values that fall within the claimed ranges of the present invention – where Chester teaches testing the nonwoven to determine a force needed to deform the nonwoven as the fabric is elongated during a ring rolling process (Chester paragraphs 0096-0100). Since the invention of Erdem/Chester uses the same components to provide an extensible nonwoven, one of ordinary skill in the art would expect the test methods to produce identical results, or results having statistically insignificant differences.
As to claim 15, the nonwoven web comprises a plurality of overbonds (Erdem paragraphs 0056, 0090; Arora paragraphs 0169, 0250).
As to claim 16, the plurality of apertures are non-homogeneous – where Erdem teaches the apertures may be of one or more different sizes and/or shapes (Erdem paragraphs 0082). Erdem teaches the nonwoven web defines a plurality of apertures (paragraph 0076), and wherein a maximum measurable aperture area equivalent diameter is between about 1.5 to about 3.5 mm (paragraph 0080; Figure 16A). Erdem does not teach the apertures are measured according to an Aperture Area Equivalent Diameter Test. However, Erdem teaches a test for determining the same parameter, aperture diameter (paragraphs 0080, 0111) which falls within the claimed range of aperture diameters of the present invention. One of ordinary skill in the art would expect the test methods to produce identical results, or results having statistically insignificant differences.
As to claim 18, the nonwoven topsheet has an Effective Open Area of between about 7% and about 25%, according to the Effective Open Area Test (Erdem paragraph 0081).
As to claim 19, Erdem teaches a multilayered topsheet (Erdem paragraph 0072) and at paragraph 0056, incorporates by reference Arora et al. US Patent Application Publication 2016/0136014 who teaches the nonwoven topsheet comprises a second nonwoven web, and wherein the first nonwoven web is hydrophobic (Arora paragraph 0122); and wherein the second nonwoven web is hydrophilic (Arora paragraph 0122). Erdem teaches the layers may be comprised of the same type of nonwoven materials or different materials (paragraph 0072). Erdem teaches the nonwoven materials include spunbond bi-component fibers comprising polypropylene (paragraphs 0056, 0073). Erdem/Chester does not teach the polypropylene has a crystallinity of between about 20% and about 41%, according to the Crystallinity Test, and wherein the polypropylene has a melting temperature of between about 130°C and about 161°C. Erdem incorporates by reference (Erdem paragraph 0056) Arora et al. US Patent Application Publication 2016/0136014 who teaches thermoplastic fibers that melt and then crystallize upon cooling for use in the topsheet (Arora paragraph 0135). Specifically, Erdem teaches polypropylene is used as a core component of a bicomponent fiber in a topsheet (paragraphs 0056, 0073) the same as the present invention. It would have been obvious to one of ordinary skill in the art before the invention was originally filed to provide the topsheet with polypropylene fibers having the claimed melt temperatures and crystallinity to ensure the integrity of the fibers in the bonding and aperturing processes.
As to claim 20, Erdem/Chester teaches the nonwoven web of claim 11 substantially as claimed. See the rejection of claims 1 and 11 supra. Erdem/Chester do not teach the nonwoven topsheet has a lint production of between about 3% and about 9%, according to a Tape Stripping Test. However, it is reasonable to expect the invention of Erdem/Chester to achieve these material properties if subjected to the same material testing parameters since the article of Erdem/Chester is comprised of the same materials and meets the construction limitations as the present invention. It would have been obvious to one having ordinary skill in the art at the time the invention was originally filed to have applied the same testing procedures with the expectation of the same results since the same materials are used in the invention of Erdem/Chester.
Claims 17 are rejected under 35 U.S.C. 103 as being unpatentable over Erdem et al. US Patent Application Publication 2019/0105209 in view of Chester et al. US Patent Application Publication 2015/0322605 and further in view of Ashraf et al. US Patent Application Publication 2018/0214321 (Erdem and Chester are cited in IDS filed 11/14/2025).
As to claim 17, Erdem/Chester teach the present invention substantially as claimed. Erdem/Chester does not specifically teach portions of perimeters of at least some of the apertures comprise a melt lip. Ashraf teaches nonwoven fabrics having three-dimensional surface features and aperture patterns that can allow for fluid penetration (Ashraf paras. 0005-0006). Ashraf teaches the nonwoven substrate is used as a topsheet in an absorbent article (Ashraf para. 0096). Ashraf further teaches at least some of the apertures can comprise one or more melt lips 15 or fused portions that may at least partially or fully surround the apertures 13. Ashraf teaches the one or more melt lips 15 may be formed during the overbonding step and may add strength to a substrate (Ashraf Fig. 3; para. 0102). It would have been obvious to one having ordinary skill in the art before the invention was originally filed to modify the apertures in the nonwoven topsheet of Erdem/Chester with melt lips for the benefit of adding strength to the nonwoven as taught in Ashraf.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-20 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 12,303,361. Although the claims at issue are not identical, they are not patentably distinct from each other because claims of the instant application are a broader recitation of the claims of the patent in that it does not set forth melt lipped apertures and a specific neckdown modulus in the independent claim 1 and a crystallization peak maximum in independent claim 11. The claims of U.S. Patent No. 12, 303, 361 contain each and every limitation of the claims of the instant application as well as additional features. The claims of the US Patent are narrower than the claims of the instant application, and effectively anticipate the instant claims. Thus, the invention of the patent claims 1 and 11 are in effect a "species" of the "generic" invention of the instant claims 1 and 11. It has been held that the generic invention is “anticipated” by the “species". See ln re Goodman, 29 USPQ2d 2010 (Fed. Cir. 1993).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Xu et al. US 2014/0127459 teaches a soft nonwoven for use as a topsheet. Dalal et al. US 20180271716 teaches a soft elastomeric nonwoven topsheet material.
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/JACQUELINE F STEPHENS/ Primary Examiner, Art Unit 3781
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